Sentry Ins. v. Majeed

• Decision Date: 08 January 1990
• Docket Number: No. A89A2310,A89A2310
• Citation: 194 Ga.App. 276,390 S.E.2d 269
• Parties: SENTRY INSURANCE v. MAJEED et al.
• Court: Georgia Court of Appeals

Page 269

390 S.E.2d 269

194 Ga.App. 276

SENTRY INSURANCE v. MAJEED et al.

No. A89A2310.

Court of Appeals of Georgia.

Jan. 8, 1990.

Rehearing Denied Jan. 22, 1990.

Certiorari Granted March 6, 1990.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Atlanta, for appellant.

Prince A. Brumfield, Jr., for appellees.

BIRDSONG, Judge.

Appellant, Sentry Insurance Company (Sentry), appeals the final order and judgment of the superior court dismissing its declaratory judgment action for failure to state a claim upon which declaratory judgment can be granted.

Appellee, Bahiyyah Abdul Majeed, claims that certain losses arising out of an automobile collision were covered by a policy of automobile insurance issued by appellant. Appellant asserts that the vehicle in question, a Plymouth, is not covered as it was an uninsured vehicle owned by appellee and being driven by her husband at the time of collision. Appellant further asserts that the Plymouth was added to the policy replacing a Volvo that was taken out of service; but, upon determining the Plymouth could not pass inspection and needed repairs, appellee requested the Plymouth be removed from the policy and that the Volvo be re-listed as an insured vehicle thereon. No request subsequently was made by appellee to re-list the Plymouth on the insurance policy. Appellee asserts that she was assured by an agent for the company that the vehicle would be covered when it was returned to service, and that appellant is obligated to appellee for PIP benefits under appellee's policy of insurance with appellant. Appellee has not filed any court action against appellant or others for damages arising from the collision.

The superior court dismissed the declaratory judgment action brought by appellant Sentry on grounds, inter alia, that declaratory judgment actions are not appropriate for determination as to no-fault coverage, in part because declaratory judgment is not available to a party merely to test the viability of its defenses. Allstate Ins. Co. v. Shuman, 163 Ga.App. 313, 293 S.E.2d 868; Baron v. State Farm, etc., Ins. Co., 157 Ga.App. 16(1), 276 S.E.2d 78.

Appellant's sole enumeration of error is that the trial court erred in dismissing, sua sponte, appellant's complaint as a genuine controversy does exist, and that this is a proper matter for declaratory judgment. Held:

1. In its brief, appellant Sentry asserts that the trial court erroneously found appellee's answer to paragraph 14 of the complaint constituted a defense of failure to state a claim upon which relief may be granted.

This assertion of error, although contained in appellant's brief, was not included within the parameters of its sole enumeration of error. OCGA § 5-6-40 provides that enumeration of errors "shall set out separately each error relied upon." (Emphasis supplied.) Appellant, in its sole enumeration of error, has separately stated that the trial court erred in dismissing its declaratory judgment action because it presented a proper matter for declaratory judgment as a genuine controversy exists. "Matters not enumerated as error will not be considered on appeal." Rider v. State, 226 Ga. 14(2), 172 S.E.2d 318. " 'An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.' [Cits.] One cannot expand the scope of review or supply additional issues 'through a process of switching, shifting, and "mending your hold." ' " City of College Park v. Ga. Power Co., 188 Ga.App. 223-224, 372 S.E.2d 493; accord Thomason v. Times-Journal, 190 Ga.App. 601(3), 379 S.E.2d 551. Therefore, we cannot pass upon this issue as it is not properly before this court on review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga.App. 371, 373, 367 S.E.2d 272.

2. Appellant, citing Board of Trustees, etc., of Ga. v. Kenworthy, 253 Ga. 554, 322 S.E.2d 720, asserts that in a controversy in which there is a pending adverse claim, the matter would be proper for decision by declaratory judgment. We are not convinced that Board of Trustees supports the broad position asserted by appellant. Initially we note that the Supreme Court reaffirmed the long-standing rule that "[t]his court has in the past generally refused to issue advisory opinions. [Cits.] We normally limit our rulings to the specific case or controversy decided by the trial court, [cit.], and do not venture an opinion as to the legality of future actions which may or may not occur." (Emphasis supplied.) Id. at 557, 322 S.E.2d 720.

Moreover, we find the facts in Board of Trustees to be distinguishable from the facts in this case. The case before us involves an administrative claim between a private citizen and an insurance company; the rights of the public are not directly involved. The claims referred to in Board of Trustees would involve claims against a state agency allegedly adverse to plaintiff as a citizen and taxpayer of Georgia. Likewise, the facts of the case sub judice are distinguishable from the facts in Allstate Ins. Co. v. Shuman, supra, also cited by appellant, where the appellant as well as other insurance companies in the...